Reoccupying international law

Int'l law must be re-examined to adjust to modern developments of warfare.

By SOLON SOLOMON
Smoke from explosion in Gaza Strip [file] (photo credit: Ibraheem Abu Mustafa / Reuters)
Smoke from explosion in Gaza Strip [file]
(photo credit: Ibraheem Abu Mustafa / Reuters)
Prior to the ceasefire, this time around chances were higher that a military ground offensive would lead to Gaza’s reoccupation for a considerable period of time. Around 75,000 reserve troops had been called up. This by far exceeds the number called in similar past operations. In the Israeli political scene and ahead of elections, politicians have started voicing their concerns. But on a legal plane, to enter into Gaza will have proven how ineffective international law appears to modern developments.
This does not mean that international law is limited in its influence as  critics would like to claim. States continue to take it into consideration. Even in the present Gaza crisis, both parties participated actively in the efforts to achieve a ceasefire, acknowledging that resort to force is not the optimum. What international law needs is to upgrade its status, not just claim its place in international relations. This can only be achieved if it readjusts to the changing technical and legal developments of warfare.
Since Israel disengaged from Gaza in 2005, the UN and part of the international scholars continued to hold that Israel bears towards Gaza, all the responsibilities of an occupying power as if nothing had changed. By exiting Gaza, Israel both compromised its security and gained nothing in the legal field.
In the case of Gaza, international law  failed to adequately respond to the challenges of the times. As also seen after the September 11th terrorist attacks in the US and the subsequent "War on Terror", international law was called to redefine the relation between state and non state actors as well as to asymmetric warfare but failed to do so. If Israel reoccupies Gaza, the whole legal situation will return to the conventional law of occupation. The legal debate will once again focus on the usual pattern; Israel will be the occupying power and the Palestinian Authority will claim sovereignty over these territories. The parameter of Hamas Gaza control will disappear and international law will sigh out of relief. The Israeli-Palestinian relationship will have once again become bipolar rather than triangular.
Indeed, the fact that Hamas currently controls Gaza poses challenges for both Israel, for security, and the Palestinian Authority in the legal realm.  PA President Mahmoud Abbas has claimed that the Israeli operation undermines the Palestinian bid for statehood at the UN, expected to come into fruition later this month. Yet, the opposite is true. If Hamas remains in control of Gaza, the proclaimed Palestinian state will by definition be a “failed state.”In international law, it is a term used to describe states which are unable to exercise jurisdiction over all of their territory.
However, with Israel reoccupying Gaza, a UN recognized Palestinian state will not be a failed state, but a state under occupation. Abbas can focus all his energy on how to blame the Israeli occupation for all the miseries of the newly proclaimed state rather than having to clash with Hamas over regaining part of the territory.
No such efforts would be needed if international arrangements were kept back in 2005. Then, Israel granted control of Gaza to the Palestinian Authority with the assurance that Israeli security would not be compromised. The relevant international agreement on control of the border crossing between Gaza and Egypt was signed with the facilitation of the US and the European Union. Nevertheless, the particular agreement was quickly disregarded when Hamas took control of the Strip. International law was called to task and none of the international powers came to its defense.
Now contrastly, these same world powers will probably find convenient a possible Israeli Gaza reoccupation. The status quo will return to the pro-2005 era, an area international and regional actors already know how to safely navigate.
Yet, peace and change comes only with courageous moves. On this, aside from the parties which will continue blaming each other, international law should also take some time to ponder over why such change did not come in 2005.
The writer has served in the Knesset legal department in charge of international and constitutional issues.


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